Citation Nr: 1402012 Decision Date: 01/14/14 Archive Date: 01/31/14 DOCKET NO. 07-34 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicidal agent exposure. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicidal agent exposure. REPRESENTATION The Veteran is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. These claims were previously before the Board in October 2009, June 2011, and January 2013. After an August 2013 supplemental statement of the case, the claims have been returned to the Board for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the January 2013 remand, the Board directed the RO to obtain a supplemental opinion from the March 2010 VA examiner who rendered a previous supplemental opinion in June 2011. The Board requested that the examiner render an opinion as to whether "it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed bilateral upper and/or lower extremity peripheral neuropathy is caused by or otherwise related to his military service, to include, but not limited to, his presumed in-service exposure to an herbicidal agent." In so doing, the Board requested the examiner to consider the Veteran's lay statements as to experiencing symptoms during and after his active duty. The RO obtained a supplemental opinion from the VA examiner in July 2013. Unfortunately, the examiner's July 2013 opinion was limited to assessing whether the Veteran's bilateral upper and lower extremity peripheral neuropathy were etiologically related to his presumed in-service exposure to an herbicidal agent. The examiner provided no opinion as to whether the Veteran's bilateral upper or lower extremity peripheral neuropathy was otherwise etiologically related to his active duty, to include consideration of the Veteran's lay statements as to experiencing in-service and post-service symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). As such, the Board finds that the July 2013 supplemental opinion is inadequate for purposes of adjudicating the Veteran's above-captioned claims and did not substantially comply with the Board's January 2013 remand directives. Consequently, a remand is required in order to obtain another supplemental opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. The RO should make available the Veteran's claims file to the VA examiner who administered the July 2013 supplemental opinion, and ask that another supplemental opinion be provided. After reviewing the claims file, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed bilateral upper and/or lower extremity peripheral neuropathy is caused by or otherwise related to his military service, to include, but not limited to, his presumed in-service exposure to an herbicidal agent. In providing this opinion, the examiner must address the Veteran's lay statements as to experiencing symptoms during and after his active duty. The examiner should fully explain the rendered opinions, including a thorough underlying rationale for any conclusion reached. 2. Thereafter, the RO should re-adjudicate the appeal, to include all of the relevant evidence of record. If the benefit sought on appeal remains denied, the RO should issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time in which to respond. Then, the appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).